Posted on 01/29/2005 12:25:16 PM PST by mastercylinder
VANCOUVER (CP) - The Supreme Court of Canada has ruled that masturbating at home is not an offence, even if the activity can be seen by peeking neighbours.
The case centred on whether a private space - Daryl Clark's living room - became public because others could view it. The high court said No in a unanimous ruling Thursday. "The living room of his private home was not a place 'to which the public (had) access as of right or by invitation, express or implied,' " Justice Morris Fish wrote, quoting the Criminal Code.
"I do not believe it (access) contemplates the ability of those who are neither entitled nor invited to enter a place to see or hear from the outside, through uncovered windows or open doors, what is transpiring within."
On Oct. 28, 2000, Clark's neighbours across his backyard in Nanaimo, B.C., noticed "some movement" in Clark's living room.
The woman had been watching television with her two young daughters in their family room, a room lit only by a television screen and light from the adjoining kitchen.
The woman moved to another room for a better view, then called her husband. The pair watched Clark for up to 15 minutes from the privacy of their darkened bedroom.
The court found they took care to avoid being seen by Clark, peering out from underneath their partially lowered blinds. Later, the woman's husband fetched a pair of binoculars and a telescope. He also tried, unsuccessfully, to videotape Clark in action, says the judgment.
The judgment notes the pair were "understandably concerned" because they feared Clark was "masturbating to our children."
The neighbours, who are identified only as Mr. and Mrs. S, called police.
The officer was able to see Clark from his belly up from the neighbour's bedroom and from the neck or shoulders up from the street level.
But Clark was charged after the police officer shone his flashlight in Clark's window at close range.
The trial judge concluded he had "converted" his living room into a public place and the B.C. Court of Appeal upheld the conviction.
Clark was given a four-month sentence.
Gil McKinnon, Clark's lawyer, said his client is happy with the outcome and glad to be getting on with his life, but he's not interested in talking about his court fight.
McKinnon said the Supreme Court rejected the notion that people's private living spaces can be turned into public places just because someone can see inside.
"A person has the freedom in his or her own living room to do whatever they choose to do and is not caught by the criminal law if they have no intent to offend or insult someone who may not be on that private property."
The protection isn't extended to someone who commits an indecent act on their own property with the intention of letting the neighbours see it.
But in this case, the evidence suggested Clark had no idea he was being watched, the court found.
John Russell, president of the B.C. Civil Liberties Association, said he was surprised the case got before the courts in the first place.
But he said he was relieved the ruling went the way it did.
If it had gone the other way, "we would have to be a lot more careful about closing the drapes or covering up.
"In fact, most Canadians are careful in those ways and it would appear that the poor man had just failed to take the formal precautions."
Does anyone find it a tad ironic that this story is written by Wendy Cox? ;-)
Now if some guy was playing with himself in front of the window where it is real hard not to be seen, then he should be busted for it by a local "lewd behavior" law.
In other news, there's now hair on his palms....
OK so that suggests they were at best silhouettes. And they were in plain view.
The woman moved to another room for a better view, then called her husband. The pair watched Clark for up to 15 minutes from the privacy of their darkened bedroom.
She saw movement at the neighbor's house and say, "I wonder what he's doing!" "Hey, honey, let's hide out and watch this guy doing what we think he might be doing and maybe get aroused by it." Fifteen minutes, eh? Sounds suspicious.
The court found they took care to avoid being seen by Clark, peering out from underneath their partially lowered blinds. Later, the woman's husband fetched a pair of binoculars and a telescope.
TELESCOPE! Good grief! These folks have serious issues. If they're concerned this guy is watching their kids, pull the drapes.
The officer was able to see Clark from his belly up from the neighbor's bedroom and from the neck or shoulders up from the street level.
OK... they couldn't see him with a the naked eye, binoculars, or telescope from their home. And yet the cop goes closer to the guy's place, not where this couple was watching him from, shines a flashlight in his window and says, "You're under arrest because I can see your genitals Right. Clearly a criminal case worthy of the court's time!
This story, as reported with this article is surreal at best.
I seem to recall cases in the U.S. where if you can see, even by peering over a fence, or extra effort on your part, some sexual activity or nudity in a neighbor's home they're violating law at least in some jurisdictions. That's what I recall, anyway. I don't know if SCOTUS has said anything on the matter.
oh my!
Why does the guy who is accused get his named splashed all over the papers, but the weirdos watching him stay anonymous?
Don't worry, I'm not offended. Just couldn't resist the play on words with "Yank" as a description for Americans.
Hmmm... One of you is from Canada, and the other is from Minnesota.
Sooo...... who's the "YanKER" and who's the "YankEE" in this thing?
Hey, don't look at me. I'm down here in Texas. From this vantage point, BOTH of you qualify as YankEEs.
:-D
"The neighbours, who are identified only as Mr. and Mrs. S, called police."
The police should have told them to beat it.
The Cops just told the guy to get a hold of himself, pull himself together.
The only guy I ever saw masturbating standing at his window ended up being the man who was stalking me for a year. He was arrested and convicted on terroristic threating and stalking. Now a felon with a 5 year sentence in the pokey.
Masturbation,No he was spanking Hank!
Who are the "perverts" here?
Yeah, well you guys stole our hockey team because you couldn't play hockey and wanted to part of real America. BTW, we sold you the North Stars because they couldn't play hockey either.
BTW, unlike most damn yankees, I DO know what BBQ really is and, yep, its unavailable up here...except in my backyard.
LMAO!
why?
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